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P^.^J 


EXPERT  TESTIMONY. 


Scientific    Testimony    in    the    Examination    of     ! 
Written  Documents  Illustrated  by 

the  Whittaker  Case,  &c.  I 


By  Dr.^.  U.  piper, 

licago,  III. 


REPRINTED  FROM 

THE  AMERICAN  LAW  REGISTER 
Foi'July  and  August,  1882. 


D.  B.  CANFIELD  &  CO.,  PHILADELPHIA. 
1882. 


\W 


n5- 


0/ 


THE 


AMERICAN  LAW  REGISTER. 


JULY  1882. 


EXPERT  TESTIMONY— SCIENTIFIC  TESTIMONY  IN 
THE  EXAMINATION  OF  WRITTEN  DOCUMENTS, 
ILLUSTRATED  BY  THE  WHITTAKER  CASE,  &c. 

Expert  (in  law)  is  "one  who  is  expert  or  experienced;  a  person 
having  skill,  experience  or  special  knowledge  on  certain  subjects 
or  professions,  a  scientific  witness.'' 

One  of  the  definitions  of  the  word  science  is,  "  Knowledge  ;  that 
which  one  knows." 

One  definition  given  by  Webster  is,  "  Any  branch  or  species  of 
knowledge." 

Webster's  definition  of  the  word  "expert"  is,  "An  expert, 
skilful  or  practiced  person ;  one  who  has  skill,  experience  or 
peculiar  knowledge  upon  certain  subjects  of  inquiry  in  science, 
art,  trade,  or  the  like;  a  scientific  witness."  This  definition 
would  include  every  person  who  is  skilled  in  any  business,  art  or 
trade  whatever ;  and  in  law,  any  such  person,  when  called  as  a 
witness  in  a  court  of  justice,  might  be  entitled  to  be  classified 
under  the  head  of  an  expert  or  a  scientific  witness  in  that  par- 
ticular department  of  human  pursuit  in  which  he  could  claim  to 
be  skilled.  Scientific  or  expert  testimony,  then,  in  this  view  of 
the  subject,  would  include  the  investigation  and  ascertainment 
of  certain  classes  of  facts  and  their  statement  in  fixed  terms. 
This  definition  thus  far  involves  no  conclusion  or  opinion  on  the 
part  of  the  expert  as  to  the  relation  or  bearing  of  such  facts  in  a 

Vol.   XXX.— 54  (425) 


426  EXPERT  TESTIMONY. 

given  case.  It  places  this  class  of  testimony  on  the  same  ground 
as  all  other  testimony  in  this  respect.  This,  as  I  have  said  in  a 
former  paper,  \Yould  seem  to  be  the  true  position  of  the  expert 
■witness  in  all  those  cases  where  it  requires  no  special  learning  or 
skill  to  understand  the  bearing  of  the  ascertained  facts.  It  hap- 
pens in  a  large  number  of  cases  in  which  the  expert  witness  is 
called  to  testify,  perhaps  in  all  of  the  class  under  discussion,  that 
an  intelligent  juror  is  just  as  capable  of  coming  to  a  correct  con- 
clusion in  the  premises  as  to  the  bearing  of  the  facts  as  the  expert 
himself,  and  it  certainly  seems  as  absurd  to  call  for  •  his  (the 
expert's)  opinion  in  such  cases  as  is  deemed  to  be  the  fact  in 
respect  to  the  ordinary  witness.  In  my  paper,  to  which  I  have 
alluded  above  (American  Law  Register,  Sept.  1880),  I  say:  "The 
discussion  of  the  value  of  expert  testimony  frequently  occupies 
the  attention  of  the  courts,  and  is  made,  in  a  large  proportion  of 
cases,  the  subject  of  adverse  criticism  on  the  part  of  the  learned 
judges."  This  will  continue  to  be  the  case  so  long  as  the  state- 
ment of  scientific  facts  and  the  opinions  of  scientific  nicn  are 
allowed  to  be  received  in  the  courts  and  are  classified  bv  them 
(under  the  same  head)  as  expert  testimony.  Scientific  testimony, 
that  is,  scientific  facts,  from  the  very  nature  of  the  case,  must  be 
admitted  to  be  the  very  best  class  of  testimony,  while  the  opinions 
or  guesses  of  scientific  men,  like  all  other  guesses,  are  often  as 
likely  to  be  wrong  as  right.  It  would  be  just  as  reasonable  to 
class  under  the  same  head  the  theories  of  the  alchemists  and  the 
demonstrations  of  the  chemists  as  to  place  opinions  and  the  facts 
of  science  in  a  similar  position. 

The  proverbial  uncertainty  of  expert  testimony  is  further  due 
to  the  practice  of  the  courts  themselves  in  admitting  incompetent 
persons  to  testify,  as  also  in  thus  adopting  an  altogether  incorrect 
classification. 

If  the  courts  deem  it  necessary,  to  the  settling  of  disi)uted 
questions,  to  classify  facts  and  opinions  under  the  same  head, 
that  of  "  expert  testimony,"  and  to  make  use  of  both  to  the  same 
end,  they  might  do  away  with  the  present  state  of  confusion  in 
the  matter,  by  calling  the  one  the  testimony  of  fact  and  the  other 
the  testimony  of  opinion. 

As  an  illustration  of  the  first  species  of  testimony,  I  give  a  case 
in  which  it  was  a  question,  whether  one  part  of  a  doeument  was 
written  with    the   same  ink    as  the  other    part.      rpou    submitting 


EXPERT  TESTIMONY.  427 

the  paper  to  the  action  of  water,  in  connection  with  the  thin  sheet 
used  in  the  process  of  coi)yiug,  I  found  that  one  part  gave  a 
distinct  copy,  while  the  other  part  showed  not  the  slightest 
appearance  of  being  acted  upon  by  the  solvent.  Further,  upon 
both  parts  heing  subjected  at  the  same  time  to  the  action  of  a 
re-a^ent,  in  one  case  the  ink  was  changed  to  green,  while  in  the 
other  it  was  obliterated.  Was  there  any  need  in  this  case  for  the 
expert,  who  performed  the  manipulations,  to  give  an  opinion  as  to 
the  identity  of  the  ink  in  the  two  portions  of  the  documents  ;  and 
was  not  the  jury  just  as  competent  to  decide  the  question  as  the 
most  skilled  expert  ?  And,  further,  could  there  be  any  propriety 
in  designating  the  answer  to  such  a  question  as  an  opinion  at  all  ? 
"  An  opinion,"  say  the  authorities,  "  is  a  matter  about  Avhich 
two  persons  can,  without  absurdity,  think  differently."  Could 
there  be  any  chance  of  such  difference  here  ?  And  why  then 
does  the  expert  witness  stand  in  any  different  relation  to  such 
cases  as  the  one  under  consideration,  than  the  ordinary  witness? 
And,  further,  does  not  his  being  an  expert,  in  the  legitimate  sense 
of  the  term,  incapacitate  him  in  many  of  the  courts  from  giving 
testimony  at  all  in  such  cases,  that  is,  in  cases  where,  as  in  the 
one  under  consideration,  he  is  able  to  set  the  actual  facts  before 
the  jury?  He  could  not,  as  is  evident,  give  an  ojnnion  in 
such  a  case,  as  the  result  of  his  investigation  amounts  to  a  demon- 
stration. 

Is  this  a  strained  interpretation  of  the  practice  of  the  courts  as 
to  the  admission  of  expert  testimony  ?  In  Bex  v.  Cator,  4  Esp. 
117,  the  expert  was  allowed  to  be  asked  whether,  in  his  opinion,  the 
libel  under  consideration  was  written  in  a  feigned  or  natural  hand, 
but  he  could  not  be  allowed  to  answer  the  question  whether  he  should 
judge  that  the  libel  was  written  by  the  same  person  that  wrote 
the  acknowledged  letters.  Could  absurdity  go  farther  than  this  ? 
What  then  is  a  natural  hand  in  contradistinction  to  an  unnatural 
or  feigned  hand  as  a  general  term  ?  Or  if  the  question  read, 
Is  this  the  handwriting  of  the  party  or  parties  involved  in  the 
transaction  under  consideration,  how  are  we  to  get  at  the  fact  if 
we  cannot  be  allowed  to  compare  it  with  genuine  specimens?  In 
the  case  mentioned  at  the  head  of  this  paper,  one  of  the  govern- 
ment experts,  Hagen,  sought  to  make  this  distinction  between  a 
natural  and  feigned  hand,  and  Mr.  Southworth,  another  of  the 
government  Avitnesses,  uses   the  term  "  natural  hand."     It  would 


428  EXPERT  TESTIMONY. 

be  interesting  to  discover  wliat  is  meant  by  "  natural  hand"  in 
this  connection.  One  of  the  definitions  of  the  word  "natural"  is 
"produced  by  nature,"  "not  artificial;"  another,  "in  accordance 
with  nature."  Certainly  this  cannot  be  the  meaning  in  eitlier 
case,  and  we  arc  precluded  from  limiting  the  application  of  the 
term  to  individual  cases  by  the  comparison  of  specimens  of  writing. 
This  is  forbidden  in  the  first  place,  by  the  rulings  of  the  court, 
and  in  the  others  by  the  connection  in  which  the  word  "natural" 
is  employed. 

In  Gurney  v.  Langlands,  5  B.  &  Aid.  330,  on  a  charge  of 
forgery,  the  expert  was  asked, '"  From  your  knowledge  of  hand- 
writing, do  you  believe  the  handwriting  in  question  to  be  genuine 
or  forged?"  The  learned  judge,  Baron  Wood,  said,  in  the  course 
of  his  remarks,  "There  is  no  known  standard  by  whicli  hand- 
writing can,  upon  inspection  only,  be  determined  to  be  counterfeited, 
without  some  previous  knowledge  of  tlie  genuine  handwriting,  the 
handwriting  of  men  being  as  various  as  their  faces." 

In  a  case  previous  to  this.  Lord  Kenyon  admitted  this  kind  of 
testimony,  i.  e.,  "  Is  the  paper  in  question  written  in  an  imitated 
hand  ?" 

In  the  subsequent  case  of  Goodtitle  v.  Braham,  4  Term  Rep. 
497,  he  said,  however,  that  he  "would  not  receive  such  evidence." 
And  he  seems  at  this  time  to  have  come  to  a  conclusion  as  to  its 
utter  absurdity ;  for  he  says  in  another  case  [Batchclor  v.  Honey- 
wood,  2  Esp.  714),  as  to  the  evidence  of  a  clerk  from  the  post  oflUce, 
offered,  under  similar  conditions,  "  it  is  too  loose  and  cannot  be 
received." 

And  Chief  Justice  Bronson,  of  New  York,  in  Sacl'dt  v. 
Speyicer,  29  Barb.  180,  adds,  "The  evidence  of  experts  has  been 
allowed  in  some  instances  to  show  that  the  signature  was  in  a 
simulated  hand ;  but  this  is  now  disapproved  of."  In  spite  of  all  this, 
and  in  spite  of  the  manifest  absurdity  of  the  whole  thing,  in  the 
Whittaker  trial  or  trials,  including  the  one  at  West  Point,  there 
were  found  experts,  and  "judge  advocates,"  and  "recorders," 
who  could  not  only  entertain  such  (piestions,  but  go  even  further, 
and  allow  an  opinion  to  be  given  as  to  whether  the  specimen 
under  investigation  was  written  by  a  man  or  a  woman. 

Recorder  Skars  to  the  expert,  Mr.  Gayler:  "Can  you  say 
whether  the  anonymous  letter  {i.  e.  "  the  note  of  warning")  was 
written  by  a  man  or  woman  V" 


EXPERT  TESTIMONY.  429 

Ans,   "  In  my  opinion  it  was  written  by  a  man." 

Q.   "  Is  it  a  disguised  hand?" 

Ans.   "  I  think  so." 

Thus  it  will  be  seen  that  in  the  eyes  of  these  experts  and  gen- 
tlemen learned  in  the  law,  there  is  some  known  standard  by  which 
handwriting  can,  upon  inspection,  be  determined  to  be  counter- 
feited or  otherwise,  and,  moreover,  that  this  standard  or  model  can 
be  formulated  in  some  way  so  as  to  be  conceived  of  and  understood 
as  the  true  type  or  typical  form  of  a  natural  or  genuine  hand- 
writing. It  would  seem  just  as  appropriate  to  talk  of  a  natural 
brick  house,  or  a  natural  steam-engine,  as  of  a  natural  hand- 
writing. 

Perhaps,  however,  the  idea  may  have  been  deduced  from  au- 
thority, that  of  Mr.  Justice  Dogberry,  who  declares  that,  "  to 
write  and  read  comes  by  nature."  So  that  we  may  thus  be  war- 
ranted in  pronouncing,  in  the  language  of  the  experts  quoted 
above,  whether  a  specimen  of  handwriting  be  "natural,"  or 
"feigned,"  or  "simulated,"  or  "dissimulated,"  or  "disguised," 
or  an  "imitation,"  &c. 

It  will  be  seen  that  I  am  warranted  in  referring  to  this  class  of 
testimony  as  being  still  admitted  in  the  practice  of  some  of  the 
courts,  notwithstanding  the  declaration  of  Chief  Justice  Bronson, 
that  "  it  is  now  disapproved  of,"  as  the  first  case  referred  to, 
Rex  V.  Cator,  is  stated  to  be  a  leading  case  on  this  subject  (5  Am. 
Law  Rev.  228),  and  the  present  case,  though  tried  by  a  military 
court,  was  conducted  as  regards  the  admission  of  evidence,  in  the 
same  manner  as  it  would  be  if  tried  in  the  civil  courts. 

I  do  not  wish  to  pursue,  to  any  great  extent,  the  question  as  to 
how  far  a  strict  construction  of  the  rules  of  the  courts  would  debar 
the  scientific  witness  from  giving,  as  an  expert,  any  other  testi- 
mony than  that  of  opinion.  Certain  it  is  that  in  my  own  experi- 
ence in  some  of  the  courts,  such  testimony  only  has  been  admitted, 
while  in  others  every  step  in  the  process  by  which  I  have  arrived 
at  my  conclusions,  has  been  deemed  admissible  as  testimony,  and 
not  with  the  mere  idea  alone  of  thus  testing  the  qualifications  of 
the  expert.  With  reference  to  the  particular  class  of  testimony 
under  discussion,  or  rather  to  one  species  of  it,  that  in  regard  to 
handwriting,  no  other  idea  seems  formerly  to  have  been  enter- 
tained by  the  courts,  than  that  the  expert's  testimony  should  be 
that  of  opinion  only.     Lord  Mansfield,  in  Folkes  v.   Chadd,  3 


430  EXPERT  TESTIMONY. 

Doug.  157,  says,  "  Handwriting  is  proved  every  day  by  opinion." 
In  all  the  cases  to  -»vhich  I  have  alluded,  and  in  all  which  I  have 
thus  far  examined,  this  is  the  only  idea  which  is  entertained  in 
regard  to  the  character  and  grounds  of  admissibility  of  this  kind 
of  testimony.  It  is  true  that  "  It  had  been  the  constant  custom 
of  the  courts  before  the  time  of  Folkes  v.  Chadd,  to  receive  in. 
structions  from  skilled  witnesses  ;  and  whether  such  witnesses  gave 
their  testimony  in  the  form  of  general  scientific  facts,  or  merely 
as  opinions  which  the  jur}'^  were  to  receive  as  facts,  no  objection 
was  ever  made  to  its  reception."  But  nowhere  is  it  even  inti- 
mated that  handwriting  was  ever  thought  to  be  capable  of  proof 
under  the  first  condition. 

This  declaration  or  opinion,  although  applied  to  an  altogether 
different  subject  than  the  one  under  discussion,  covers  the  whole 
ground,  and  had  the  courts  followed  the  idea  hero  formulated,  and 
classified  the  two  kinds  of  so-called  expert  testimony  under  two 
heads,  as  I  have  suggested,  they  would  have  avoided  the  "  deplor- 
able confusion  "  as,  says  the  writer,  before  quoted,  in  Avhich  "  the 
whole  subject  has  become  involved."  And  still  further,  they 
would  have  avoided  the  utter  absurdity  of  their  many  contradic- 
tory utterances  in  regard  to  this  class  of  testimony. 

The  writer  of  the  article  in  the  Law  Review,  before  quoted,  says : 
"  The  assistance  of  such  persons  "  (those  skilled  in  any  art  or 
science)  "  in  the  administration  of  justice  is  as  imperative  as  ever, 
since  it  is  simply  impossible  for  ordinary  men  to  decide  upon 
questions  of  abstruse  and  recondite  learning  or  of  technical  skill 
without  the  aid  of  experts.'' 

On  the  same  page  he  has  quoted  the  maxim,  cidlihet  in  sud  arte 
perito  eredendum  est.  On  this  he  comments  by  saying  that  this 
maxim  "  would  seem  natural  and  reasonable  enough  to  be  capable 
of  direct  and  easy  application,  but  experience  has  shown  it  to  be  > 
one  of  the  most  difficult — producing  the  most  deplorable  confusion 
and  conflict  in  that  department  of  the  law  in  which  it  is  sought  to 
be  applied."  And  further,  "the  investigation  of  the  adjudica- 
tions and  discussions  upon  the  subject,  reveals  an  unmistakable 
teiidoncy  on  the  part  of  eminent  judges  and  jurists  to  attach  less 
and  less  importance  to  testimony  of  this  nature."  And  this  last, 
notwithstanding  the  admitted  fact  that  in  many  cases  it  is  "  abso- 
lutely imi)<)ssible  to  get  along  at  all  without  this  class  of  testi- 
mony." 


EXPERT  TESTIMONY.  431 

But  after  all,  is  it  very  certain  that  there  is  any  inherent  diffi 
culty  in  the  application  of  the  principle  in  legal  trials  ?  Is  it  no* 
rather  obvious  that  the  apparent  confusion  grows  mainly,  as  I  have 
indicated,  out  of  an  incorrect  classification  in  the  premises  and 
also  of  a  want  of  technical  knowledge  on  the  part  of  those  called 
upon  to  administer  the  laws  ? 

This  may  seem  an  unjustifiable  arraignment  of  learned  judges 
and  lawyers;  but  what  of  the  proof ?^  Lord  Mansfield  says, 
"  When  questions  come  before  me.  in  regard  to  unskilfully  navi- 
gating ships,  I  always  send  for  the  brethren  of  the  Trinity  House. 
The  question  depends  upon  the  evidence  of  those  who  understand 
those  things."  Thus  this  eminent  judge  acknowledges  his  want 
of  information  upon  this  special  subject. 

In  a  case  in  which  a  party  was  charged  with  passing  a  counterfeit 
bank  note,  it  became  necessary,  in  order  to  establish  the  character 
of  the  note,  to  distinguish  between  an  etching  and  an  engraving. 
To  this  end  an  engraver  was  called  as  a  witness  in  the  case.  To 
the  unskilled  observer,  the  distinction  is  not  appreciable,  and  in 
case  of  a  much-handled  note,  it  would  pass  the  ordinary  observa- 
tion of  a  practical  engraver;  but  with  proper  and  careful  examina- 
tion, he  could  not  fail  to  come  to  a  correct  conclusion  in  the 
matter.  In  the  present  case,  as  the  court  and  attorneys  could  see 
no  difference  as  to  the  genuineness  of  the  specimens  under  ex- 
amination, the  case  went  to  the  jury  with  this  idea,  that  each 
must  therefore  be  genuine.  The  judge  remarked,  almost  in  the 
language  of  Lord  President  Boyle,  which  I  have  quoted  in  a 
former  paper :  "In  this  case,  an  engraver  has  been  examined,  to 
whose  testimony  I  pay  very  little  attention,  as  their  opinions  are 
but  little  to  be  depended  upon."  The  counsel  for  the  defence  had 
previously  called  the  attention  of  the  court  and  jury  to  the  fact 
that  (in  his  own  language)  "  no  human  eye  could  see  any  differ- 
ence, and  that  therefore  no  such  difference  could  exist.  The 
alleged  difference,  he  said,  was  subjective  or  wholly  imaginary  on 
the  part  of  the  so-called  expert."  And  yet  the  note  was  a  counter- 
feit, and  the  plate  had  been  executed  mainly  by  the  etchfng  pro- 
cess, while  the  genuine  plate  was  largely  an  engraving. 

Here  it  will  be  seen  that  the  very  terms  used  by  the  witness  in 
giving  his  testimony  were  misunderstood  by  the  court,  so  that  the 
court  designated  said  testimony  as  an  opinion,  which  it  was  not  in 
any  respect.     It  was  simply  a  statement  of  an  absolute  fact  which 


432  EXPERT  TESTIxMONY. 

the  witness  well  understood  and  knew  to  be  such,  and  which  con- 
stituted as  essential  a  difierence  between  the  processes  used  in  the 
production  of  the  two  plates  as  exists  between  that  employed  in 
making  a  cast  and  a  wrought-iron  structure.  Here  there  is  some- 
thing added  to  the  legal  literature  which,  as  we  have  seen  above, 
declares  that  eminent  judges  and  jurists  do  not  place  much  confi- 
dence in  expert  testimony.  The  reason  in  this  case  at  least, 
would  seem  to  be  very  obvious.  One  other  case  I  proceed  to 
notice  in  connection  with  this  part  of  my  subject,  as  it  still  further 
serves  to  illustrate  what  I  have  already  said  as  to  the  sweeping 
generalization  of  the  courts,  in  respect  to  the  class  of  testimony 
under  discussion. 

In  the  Tracy  Peerage  Case,  10  Clark  &  Fin.  154,  191,  Lord 
Campbell  says:  "I  do  not  mean  to  throw  any  reflection  on  Sir 
Frederic  Madden  "  (the  expert  in  handwriting  employed  in  the 
case),  "I  dare  say  he  is  a  very  respectable  gentleman,  and  did 
not  mean  to  give  any  evidence"  (opinion)  "that  was  untrue  ;  but 
really,  tiiis  confirms  the  opinion  I  have  entertained,  that  hardly 
any  weight  is  to  be  given  to  'the  evidence  of  what  are  called 
scientific  witnesses."  Is  not  this  most  excellent  logic?  Because, 
in  the  opinion  of  the  judge,  an  expert  in  handwriting  has  given 
testimony  (an  opinion)  which  he,  the  judge,  thinks  is  not  to  be 
relied  upon,  that,  therefore,  in  his  own  language,  this  really  con- 
firms him  in  the  opinions  he  has  entertained,  that  hardly  any 
weight  is  to  be  given  to  the  evidence  of  scientific  witnesses,  e.  g., 
chemists,  astronomers,  physicians,  &c.  Would  it  not  be  for  the 
best  interests  of  the  courts  and,  as  a  consequence,  of  society  also, 
to  adopt  that  portion  of  the  motto  of  The  London  Royal  Society, 
where  it  says  :  '•  Science  will  not  accept  the  authority  of  any 
master,  however  illustrious  he  may  have  been."  Judge  McLean, 
in  Allen  v.  Hunter,  G  McLean  303,  says  :  ''  The  opinions  of  the 
(experts  who  have  been  examined,  are  in  conflict,  and  so  far  as  my 
experience  goes,  this  has  been  uniformly  the  case  where  experts 
have  been  examined."  In  this  case  eight  doctors  deposed  in  favor 
of  the  ^)laintiff,  and  eleven  for  the  defendant. 

In  volume  80  of  the  Reports  of  Cases  at  liiiw  and  in  Chancery, 
determined  in  the  Supreme  Court  of  Illinois,  the  ojiiiiions  nllirm  the 
judgnuMits  below  in  thirty-three  cases  and  reverse  them  in  sixty-six 
oases,  thus  disagreeing  with  the  courts  below  in  two-thirds  of  the 
cases  under  consideration.     Nor  does  this,  by  any  means,  present 


EXPERT  TESTIMONY.  433 

the  whole  of  the  facts  in  the  premises.  As  cases  in  the  Supreme 
Court  are  decided  of  course  by  a  majority  of  the  judges,  it  will  be 
found  in  many  of  those  alluded  to  that  the  court  was  divided  in 
opinion  as  were  the  doctors  in  the  case  which  furnished  the  occa- 
sion for  the  discriminating  conclusion  of  Judge  McLean  in  regard 
to  every  species  of  scientific  testimony.  For,  as  will  be  observed, 
the  learned  judge  makes  no  exception  in  the  case,  but  distinctly 
states  that,  as  far  as  his  experience  goes,  this  has  been  uniformly 
the  case  when  experts  have  been  examined.  This  testimony  of 
the  doctors,  it  will  be  remembered,  is  precisely  of  the  same 
character  as  the  decisions  of  the  judges,  e.  g.,  the  testimony 
of  opinion. 

Suppose  the  doctors,  together  with  other  scientific  Avitnesses, 
should  quote  Lord  Campbell's  language  and  apply  it  after  this 
manner :  '"  We  do  not  mean  to  throw  any  reflection  upon  the 
noble  lord  nor  upon  judges  in  general.  We  dare  say  that  they  are 
all  very  respectable  gentlemen,  and  do  not  mean  to  give  an  opinion 
that  is  incorrect,  but  really  this  confirms  the  opinion  we  have 
entertained  that  hardly  any  weight  is  to  be  given  to  the  opinions 
of  lawyers  or  learned  judges,  especially  as  it  regards  matters 
belonging  to  their  particular  profession.  And  as  to  scientific 
testimony  they  come,  in  most  cases,  with  a  bias  in  their  minds  in 
regard  to  it,  depending  upon  their  want  of  technical  knowledge  in 
the  premises.  From  this  same  want  of  special  knowledge  outside 
of  their  profession  comes  their  absurd  classification  of  expert  testi- 
mony, in  which  all  varieties  are  placed  in  the  same  category,  so 
that  -when  a  seeming  discrepancy  occurs  in  one  case  they  declare, 
ex  cathedra^  that  all  such  testimony,  that  is  the  '  evidence  of  what 
are  called  scientific  witnesses,' should  have  'hardly  any  weight 
given  to  it.'  " 

Or,  in  the  language  of  Judge  McLean,  the  scientific  court 
might  say,  "  The  opinions  of  the  judges  of  the  law  courts,  in  a 
considerable  proportion  of  their  cases,  are  in  conflict,  and  so  far  as 
our  own  experience  goes,  this  has  been  largely  the  fact  where  they 
have  been  called  upon  to  decide  cases  belonging  to  their  own  pro- 
fession even  ;  hence  their  opinions  are  but  little  to  be  relied  upon. 
And  if  this  be  the  fact  in  their  own  profession,  how  much  weight 
should  be  given  to  their  opinions  upon  subjects  with  which  they 
are  totally  unacquainted?"  The  argument,  it  seems  to  me,  is  as 
strong  against  the  value  of  one  species  of  testimony  or  opinion  as 

Vol.  XXX.— 55 


434  EXI^ERT  TESTIMONY. 

the  other.  And  this  lies  in  the  case  of  scientific  testimony  against 
that  of  opinion  only.  But  who  does  not  realize  that  civilized 
society  could  not  get  along  at  all  without  the  courts,  and  further, 
that  their  wide  differences  in  opinion  grow  out  of  the  very  nature 
of  the  human  mind  and  the  infinity  of  human  relations  ?  It 
may  be,  and  no  doubt  is,  difficult  for  the  courts  to  adopt  rules  in 
all  cases  by  which  to  test  the  qualifications  of  experts,  but  they 
could  do  so,  I  think,  where  the  processes  by  which  a  conclusion  is 
arrived  at  are  of  such  a  nature  as  to  be  capable  of  presentation  to 
an  intelligent  jury.  And  in  these  cases,  as  I  have  suggested 
before,  it  might  be  left  to  the  jury  to  draw  their  own  conclusions, 
as  in  cases  of  ordinary  testimony. 

In  the  examination  of  handwriting  I  have  endeavored  to  adopt 
a  method  by  which  the  ordinarily  intelligent  man  may  be  able  to 
come  to  a  conclusion  with  no  other  assistance  from  the  expert  than 
that  of  a  full  explanation  of  the  f;icts  in  the  case.  It  consists  in 
the  bringing  together  of  magnified  specimens  of  the  letters  under 
discussion,  draAvn  with  great  accuracy  by  means  of  the  micro- 
scope, and  placing  the  disputed  letters  and  words  thus  enlarged  by 
the  side  of  the  genuine  ones,  thus  enabling  any  one  to  make  a 
comparison  of  form  under  the  only  conditions  in  which  such 
comparison  can  possibly  be  made.  We  are  also  able  under  these 
conditions  to  observe  the  minute  anatomy  of  the  letters  which  is 
inappreciable  in  most  cases  by  the  unaided  eye.  The  only  theory 
involved  in  the  process  is  the  idea  that  every  person  has  some 
peculiarity  in  his  writing  unlike  that  of  any  one  else  which,  if  not 
otherwise  appreciable,  may  be  brought  out  by  means  of  the  micro- 
scope. This  may  consist  in  what  has  been  called  the  "rhythm  of 
pressure,"  where  some  portion  or  portions  of  a  letter  are  specially 
shaded,  or  by  a  peculiar  looping,  curving  of  pen  strokes,  &c. 
Whatever  the  facts  may  be,  they  are  all  brought  out  by  means  of 
the  microscope,  and  by  thus  placing  the  enlarged  copies  of  the 
letters  side  by  side  the  juror  as  well  as  the  expert  in  a  given  case 
is  placed  in  a  position  to  draw  his  own  conclusions.  Where 
chemical  or  other  so  called  scientific  examinations  are  to  be  made, 
it  is  my  endeavor,  as  before  stated,  to  bring  the  facts  in  the  same 
manner  before  the  jury,  thus  placing  thorn  in  a  ]iosition  to  do 
their  legitimate  work  in  these  cases  as  well. 

My  whole  course  of  examination  in  the  Whittakor  case  was 
conducted  on  this  method  alone,  so  that  no  conclusion  was  given 


EXPERT  TESTIMONY. 


435 


the  grounds  of  which  could  not  be  made  plain  by  ocular  demon- 
stration. This  case,  so  far  as  I  am  concerned  in  it,  consists  of  the 
question  whether  a  certain  document  was  written  by  Cadet  Whit- 
taker  or  by  some  other  person. 


This  document  is  called  the  "note  of  warning"  (plate  1)  and 
consists  of  the  following  words:  "Sunday  April  4'|'  Mr 
Whittaker,  You  will  be  'fixed'  Better  keep  awake  A  friend" 
The  envelope  in  the  same  hand  is  simply  addressed  "  Cadet 
Whittaker."     I  give  a  fac  simile  of  the  first  magnified  four  times, 


436 


EXPERT  TESTIMONY. 


(plate  Ij,  tlie  address  is  seen  on  (plate  2)  first  line.  These  are 
from  photographs  of  the  "note  of  warning"  and  the  "address," 
sent  me  at  Chicago  before  I  had  anything  to  do  Avitli  the  trial. 
They  purported  to  be  taken  by  the  government,  and  at  the  time 
of  the  trial  were  carefully  compared  with  the  original  note,  with 
which  they  perfectly  agreed,  with  the  exception  of  one  letter, 
which  fact  I  shall  have  occasion  to  notice  hereafter.  The  original 
note  was  in  pencil,  and  I  remark  that  tliough  the  frame- work  or 
direction  of  lines  which  compose  letters  written  with  a  pencil  are 
correctly  given  by  the  photogra{)hic  process,  the  minute  anatomy, 
e.  g.,  the  varying  roughness  of  lines,  &c.,  fails  to  he  ))resorved. 
The  letters  composing  the  plates  were  drawn   under  a  magnifying 


EXPERT  TESTIMONY.  437 

power  of  from  9  to  10  diameters  (80  to  100  areas),  and  then 
photographed  on  the  wooden  blocks,  thus  preserving  the  original 
form  unchanged  except  as  to  size.  I  have  drawn  my  report  of  the 
testimony  given  in  the  first  trial  from  the  Criminal  Law  Magazine 
of  March  1881,  and  this,  with  whatever  else  of  government  testi- 
mony that  is  found  in  this  paper,  is  given  in  order  to  illustrate 
not  only  what  I  consider  the  difference  between  true  and  false 
methods  in  such  investigations,  but  also  to  show  the  utter  absurd- 
ity and  unfairness  of  much  that  is  introduced  as  testimony  in 
those  cases  in  which  experts  are  called  to  testify. 

Expert  John  E.  Hagen,  Criminal  Law  Magazine,  p.  158,  says: 
"Effort  is  made  by  a  nerve  motion  to  vary  the  direction  from  an 
accustomed  routine  line  of  motion  to  a  different  one,  and  one  to 
which  the  reflex  capacities  of  the  muscles  guiding  the  pencil  have 
not  been  habituated.  The  capital  '  S'  in  Sunday  shows  the  wan- 
dering pencil  lines  of  disguising  effort,  as  do  the  capital  letter  '■A' 
&c.  Page  159,  at  the  top  of  the  '  C  in  the  word  'cadet'  an 
unusual  loop  is  formed  by  steady  and  arbitrary  conditions  of 
habit,"  &c.  It  would  not  seem  difficult  to  estimate  the  value  of 
the  testimony  of  a  witness  who  could  make  such  a  statement  as 
this.  What  then  is  nerve  motion  ?  Are  not  all  the  voluntary 
motions  of  the  body  produced  by  the  action  of  the  muscles  through 
the  influence  of  the  nerves  under  the  order  of  the  nerve  centres  ? 
And  what  are  "  reflex  capacities  of  muscles  ?"  Do  the  muscles 
ever  acquire  capacities  of  their  own  by  which  they  act  independ- 
ently of  the  nerve  centres?  There  may  be  some  excuse  perhaps 
for  unscientific  persons  coming  to  a  conclusion  that  they  do  so  in 
St.  Vitus's  dance,  or  epilepsy,  but  these  would  hardly  be  con- 
ditions in  which  any  particular  kind  of  writing  could  be  produced. 
But  even  here  such  testimony  would  be  of  no  value  whatever,  as 
it  is  founded  upon  false  premises.  Both  diseased  and  normal 
muscular  action  depends  for  its  direction  upon  the  nerve  centres. 
And  thus  all  this  material  allowed  to  be  used  as  testimony,  on 
which  the  reputation,  and  life  even,  of  an  innocent  person  may 
depend,  is  shown  to  be  as  baseless  as  "  the  stuff  of  which  dreams 
are  made."  Certainly  then  its  admission  in  the  courts  becomes 
matter  of  grave  question. 

The  loop  at  the  top  of  the  "C,"  which  we  are  told  is  formed 
under  such  mysterious  conditions,  is  shown  on  plates  2,  4,  5.  The 
letters  on  the  plates  marked  with  a  star  are  from  the  "  note  of 


438 


EXPERT  TESTIMONY. 


<^^3^ 


^^1 


warning,"  those  marked  with  the  letter  "J"  are  from  specimens  of 
writing  produced  on  the  trial  by  the  government  and  alleged  to  be 
in  the  hand  of  one  of  the  cadets  at  West  Point,  and  numbered  27. 
Those  marked  with  the  letter  "I"  are  from  Cadet  Whittaker's 
papers. 

Plate  4,  consists  of  letters  from  each  of  these  sources.  These 
letters  will  be  described  in  their  order,  as  will  those  on  plate  5, 
which  consists  of  letters  from  the  "  note  of  warning,"  and  also  from 
Whittaker's  writings,  copied  from  expert  Ilagen's  own  jdates,  usi'd 
in  the  second  trial.  This  "  unusual  loop,"  at  the  top  of  the  "  i\"  it 
will  be  seen  is  common  to  this  letter  as  found  in  tlu'  *•  note  of 
warning"  and  also  No.  27.  See  4th  and  5th  lines  of  plate  2,  and 
also  diagrams  of  the  method  of  forming  it,  plate  4,  4th  line  (first  "  (^" 
from  note  of  warning,  2d  "  C"  and  8d  "  C"  from  No.  27).  On  plnlc 
5,  this  letter  from  the  "  note  of  warning"  is  contrasted  with  Ktic 


EXPERT  TESTIMONY. 


43P 


of  Whittaker's,  copied  from  Hagen's  own  plate,  and  represented 
as  being  made  in  the  same  manner  in  the  expression  '•  an  unusual 
loop  is  formed  at  the  top  of  the  "  C"  in  the  word  cadet."  By  look- 
ing at  Hagen's  own  model  (plate  5),  and  at  these  letters  in  plate 
2,  and  the  diagram  "  Cs."  in  plate  4  (the  last  five  of  which  are  all 
the  forms  of  this  letter  which  approximate  in  the  least  to  those 


440  EXPERT  TESTIMONY. 

under  discussion,  which  I  find  in  some  eighty  of  Whittaker's  papers 
in  tny  possession),  we  shall  see  that  they  are  made  upon  entirely 
different  principles.  In  Hagen's  example,  from  whence  he  has 
drawn  his  conclusions,  it  will  be  seen  that  the  crossing  lines  would 
form  two  open  loops  at  the  upper  part  of  the  first  letter  had  not 
the  first  loop  been  obliterated  by  the  inflow  of  the  ink,  while  in 
the  other,  from  Wliittaker's  writing,  three  loops  would  have  been 
seen  as  shown  in  the  diagram.  It  will  be  also  seen  that  the  out- 
line of  the  two  letters  is  quite  different,  the  one  everywhere 
rounded,  while  the  other  shows  a  sharp  point  at  the  top. 

Leaving  out  of  view  the  part  I  will  call  the  tail  in  the  first 
letter,  and  which  I  have  never  found  in  any  of  Whittaker's  "  C«." 
let  us  follow  this  stroke  of  the  pen  from  the  point  of  crossing  the 
downward  shaft  until  its  return  to  this  point.  In  the  first  "  C,"  on 
plate  4,  that  from  the  "note  of  warning,"  this  line  passing  to  the 
right,  forms  the  first  loop  of  the  "  C"  by  turning  upon  itself  down- 
ward, and  to  the  left  then  upward,  still  continuing  its  course  to 
the  left,  then  doAvnward  again  to  the  starting  point.  In  AVhitta- 
ker's  "  C,"  the  line  first  proceeds  upward  and  to  the  right  to  a  point 
in  its  course  where  it  turns  directly  downward,  forining  a  sharp 
corner;  next  it  turns  upon  itself  to  the  right  and  proceeds  upward, 
and  to  the  left  crossing  the  two  parts  of  the  line  wiiich  constitute 
the  angular  portion  of  the  letter;  next  turning  downward  and  to 
the  left  to  the  starting  point.  Thus,  it  will  be  seen,  that  there  are 
three  crossings  and  three  loops  in  this  letter,  while  there  are  but 
t^vo  in  the  first  "  C,"  and  in  the  formation  of  the  first  loop  of  the  two 
letters  the  line  is  carried  to  the  left  in  one  and  to  the  right  in  the 
other.  Next,  I  notice  the  capital  'SS',"  in  plate  5,  Of  this  letter  it 
will  be  remembered  Expert  Ilagen  says:  "  It  shows  the  wandering 
pencil  lines  of  disguising  effort."  The  first  "  *SV'  in  plate  5,  is  from 
the  "  note  of  warning,"  the  second  "*S'"  is  one  of  Whittaker's  ;  both 
copied  from  Expert  Hagen's  plate.  The  first  shows  the  first  limb 
as  beginning  at  the  right,  then  proceeding  to  the  left,  then  again 
to  the  right  with  an  upward  curve  and  course  until  it  cros.ses  the 
shaft  where  it  forms  a  downward  curve.  Next  the  lino  mounts 
upward  to  the  top  of  the  letter,  where,  turning  abruptly  on  itself, 
it  pr()c<'<Mls  downward  almost  in  a  straight  line,  forming  the  upper 
loop  of  the  h'tter.  Tiic  next  "aS*"  (Whittaker's)  begins  at  a  point  at 
the  left,  and  proceeds  to  the  right,  and  upward  in  a  continuous 
curve  until  it  reaches  the  top,  from  whence  it  proceeds  downward, 


EXPERT  TESTIMONY. 


441 


PLATH  5. 


mrkM- 


forming  a  curve  opposite  to  the  first,  thus  constituting  the  upper 
loop  of  the  letter,  with  two  nearly  equally  curved  sides  unlike  the 
first  which  has  one  side  nearly  straight.  Notice  also  the  first  limb 
or  upward  stroke  of  the  two  letters,  the  one  made  up  of  double 
curves  in  opposite  directions,  the  other  of  a  single  curve  in  one 
direction.  The  analysis  of  these  letters  might  be  carried  much 
farther,  but  I  shall  give  the  prominent  characteristics  only,  as 
these  will  fully  serve  my  purpose.     Where  the  original  writing  is 


442  EXPERT  TESTIMONY. 

executed  in  ink,  and  with  an  ordinary  pen,  the  minute  anatomy 
of  the  pen  strokes,  the  "  rhythm  of  force,"  &c.,  often  furnishes  very 
important  testimony,  but  when  the  pencil,  or  pencil-pointed  pen 
is  used,  this  "  rhythm  of  force"  cannot  well  be  appreciated.  The 
next  two  letters,  on  plate  5,  from  Expert  Hagen's  plate  1  (used  at 
the  court-martial)  will  be  seen  to  differ  quite  widely  from  each 
other.  The  first  from  the  "  note  of  warning"  has  an  oval-looped 
top,  a  double  curved  shaft,  and  a  blunted  terminal  extremity,  the 
other,  from  Whittaker's  writing,  is  without  a  loop  at  the  top,  has 
a  single  curved  shaft,  and  ends  in  a  point.  This  pointed  ending 
of  this  class  of  letters  is  true  of  all  of  Whittaker's  writing  so  far 
as  my  experience  goes.  This  fact  is  also  shown  in  plate  3.  The 
next  two  letters  ("  C")  I  have  noticed  before.  The  two  capitals 
("  TT")  I  shall  not  comment  upon,  only  referring  to  plate  2  for  all 
the  forms  of  this  letter  that  I  have  been  able  to  find  in  Whittaker's 
writing.  The  next  group  of  three  "  Y's,"  in  plate  5,  are  copied 
from  Hagen's  (plate  1).  The  first  is  from  the  "note  of  warning," 
the  other  two  from  Whittaker's  papers.  The  first  has  the  top 
loop  formed  with  one  side  much  more  curved  than  the  other,  with 
the  bottom  of  the  main  limb  quite  pointed  ;  this  limb  joined  to  the 
lower  without  a  perceptible  loop,  and  the  lower  loop  made  up  with 
a  single  curve  and  two  distinct  angles.  The  second  letter  has  the 
first  loop  made  with  two  nearly  e(jually  curved  sides,  the  bottom 
distinctly  curved,  as  it  is  also  in  the  third  example,  the  main 
limb  joined  to  the  shaft  in  both  cases  with  distinct  loops,  the  lower 
loop  being  made  up  with  two  curves  and  a  single  sharp  angle. 
Could  difference  farther  go  than  is  shoAvn  throughout  this  entire 
plate  ?  The  editor  of  a  certain  legal  journal,  in  commenting  upon 
the  "  note  of  warning,"  said  :  "  It  must  be  concluded  to  be  Whitta- 
ker's from  the  almost  entire  difference  which  exists  between  the 
two  hands."  This  would  seem  to  be  the  ground  upon  which  the 
experts  and  the  author  of  the  article  in  The  Criminal  Law  Maga- 
zine come  to  their  conclusions  in  the  case. 
'''■Credo  qxiia  impossibile  est." 


R.  U.  TiPER. 


Chicago. 

(2\)  be  continued.) 


THE 


AMERICAN  LAW  REGISTER. 


AUGUST  1882. 


EXPERT  TESTIMONY— SCIENTIFIC  TESTIMONY  IN 
THE  EXAMINATION  OF  WRITTEN  DOCUMENTS, 
ILLUSTRATED  BY  THE  VVHITTAKER  CASE,  &c. 

[Continued  from  p.  442,  ante.) 

Next  I  come  to  Expert  Gayler's  testimony,  as  published  in  the 
Criminal  Law  Magazine.  (I  could  not,  perhaps,  contrive  a  better 
way  of  illustrating  Avhat  I  claim  to  be  the  only  proper  method  of 
arriving  at  a  just  conclusion  in  such  investigations,  than  to  give 
the  testimony  of  the  experts  in  this  case  so  far  as  it  may  be  neces- 
sary to  this  end,  and  by  comparing,  side  by  side,  actual  fac-similes 
of  the  letters  commented  upon.)  First.  "  The  letter  '  c?,"  '  says 
Expert  Gayler,  "  in  the  Avord  '  fixed,'  I  found  no  other  example  of 
its  use  in  any  of  the  other  writings  examined,  except  in  No.  8." 
(Whittaker's  writing,  I  suppose'  he  means),  for  he  goes  on  to  say, 
"  in  all  the  thirteen  papers  mentioned  (of  No.  8),  this  form  of 
'  c^ '  is  almost  invariably  used."  On  plate  1,  in  the  word  "  fixed," 
this  "  c?"  is  seen,  and  also  in  the  sixth  line  of  plate  3.  The  first 
letter  in  this  group  is  from  the  "  note  of  warning,"  the  second 
two  (No.  27),  (who,  as  it  was  stated  at  the  trial,  was  one  of  the 
cadets  at  West  Point,  as  I  have  noticed  before),  and  in  whose 
specimens  of  handwriting  in  my  possession,  it  is  very  common  ; 
the  fourth  is  from  "No.  8,"  or  Whittaker.  Certainly,  the  second 
is  as  much  like  the  first  as  is  the  fourth.  It  seems  quite  strange 
that  Expert  Gayler  did  not  find  any  "example  of  its  use  in  No. 
27,"  where  it  so  constantly  occurs.  It  is  still  further  separated 
Vol.  XXX.— 62  (489) 


490  EXPERT  TESTIMONY. 

from  "No.  8  "  by  the  hook  with  the  point  to  the  right,  -which 
never  occurs  in  Whittaker's  writing.  Not  one  of  the  experts 
seems  to  have  noticed  this,  and  yet,  if  one  may  quote  poetry  in  a 
legal  paper, 

"  Oh,  the  little  more,  and  how  much  it  is, 
And  the  little  less  and  what  worlds  away."' 

"Second"  (from  Gayler),  "  the  letter  '/'  in  'fixed'  and 
'friend'  I  found  no  such  resemblances  in  the  \f"s'  used  in  any 
of  the  other  writings  examined."  On  plate  2  line  6  these  letters 
are  given  from  the  "note  of  warning"  marked  with  a  star,  those 
from  No.  27  with  a  "  J,"  and  those  from  No.  8  (Whittaker)  with 
an  "  I ;"  certainly  the  two  letters  in  the  group  marked  "J  "  are 
made  on  the  same  principles  as  the  one  marked  with  a  star,  while 
the  fourth  letter  "  b  "  in  this  line  might  as  well  do  service  for  an 
"/,"  as  the  letter  which  follows  it,  which  is  the  "/"  from  the 
"note  of  warning"  in  the  word  "fixed." 

"  Third.  The  ''p  "  in  the  words  "  April  "  and  "  keep  "  in  the 
"  note  of  warning  "  (plate  1). 

This  form  of  "  j?  "  is  almost  invariably  used  by  No.  8.  On 
plate  2,  line  6,  will  be  found  two  of  these  from  the  "  note  of  warn- 
ing,"' also  from  No.  27  and  No.  8.  It  will  be  noticed  that  the 
backward  sweep  of  the  pen  which  makes  the  middle  loop  is  car- 
ried across  the  shaft  in  the  first  two  groups,  while  in  the  third  it 
is  carried  barely  to  the  shaft.  I  have  never  found  it  to  cross  the 
shaft  in  all  the  hundreds  of  these  letters  made  by  Cadet  Whittaker, 
which  I  have  in  my  possession.  Here  certainly  is  an  important 
fact  which  connects  No.  27  with  the  '*  note  of  warning,"  while  it 
as  surely  separates  No.  8  from  it.  This  peculiarity  is  not  men- 
tioned by  Expert  Gayler. 

"  Fourth.  "  The  letters  •  th  '  following  the  figure  4  in  the  '  note 
of  warning.'  They  are  very  similar  to  the  '  th  '  habitually  used 
by  No.  8."  He  adds:  "It  must  be  noted,  however,  that  the 
knee  of  the  '  /i '  is  less  sharp  at  the  top  than  No.  8  usually  makes 
it."  Had  this  expert  stated  what  would  seem  to  be  the  truth  in 
the  case,  that  nowhere  in  the  writing  of  No.  8  could  this  letter  bo 
found  with  a  rounded  knee,  he  would  have  done  strict  justice  in 
the  premises.  This  letter,  as  made  by  No.  S,  may  be  se(>n  in  the 
sixth  line  on  plate  2  compared  with  the  same  h'ttcr  from  the 
"note .of  warning  "  and  from  No.  27.  On  \)\\\\r  2.  it  may  also  ho 
seen   in  the  third  line,  which   consists  of  a  fac-siinilc  signature  ol 


EXPERT  TESTIMONY.  491 

Whittaker.  Out  of  one  hundred  and  fifty  of  these  letters  written 
in  both  pencil  and  ink  taken  without  selection,  I  have  not  found 
one  that  has  a  rounded  "  knee." 

Fifth.  The  capital  "J.  "  in  the  "note  of  warning."  Both  of 
these  are  given  in  plate  3,  and  also  one  from  No.  27  and  two  from 
No.  8.  The  second  "  A  "  in  the  group  marked  "  I"  is  the  one 
alluded  to  by  Expert  Gayler  as  being  "  used  in  the  date  of  the 
Requisition  for  Supplies."  "The  formation  of  the  legs  of  these 
letters,"  he  tells  us,  "is  similar"  (which  it  is  not),  as  the  second 
"legs"  of  those  from  No.  8  curve  in  an  opposite  direction  from 
that  of  the  first,  and  also  contrast  with  the  straight  line  of  the 
second.  The  first  "  legs  "  of  these  begin  with  very  obvious  diflFer- 
ences,  and  the  lower  "  loops  "  of  the  one  form  almost  perfect  ovals, 
while  in  the  other  these  loops  swell  at  the  bottom  and  end  off"  with 
an  acute  angle  at  the  top.  And  in  addition  to  this  may  be  seen 
the  flourishes  in  the  first,  and  the  engraver-like  nicety  of  their 
whole. 

Sixth.  The  capital  "ilf.'s."  "These,"  he  says,  "bear  resem- 
blance to  those  used  by  No.  8."  The  first  "  3f "  in  plate  3  is 
from  the  "note  of  warning,"  the  second  from  No.  27,  the  third 
from  No.  8.  It  is  the  only  form  of  this  letter  that  I  find  in  any 
of  Cadet  Whittaker's  writings. 

Seventh.  This  takes  up  the  small  "w's,"  on  these  I  make  no 
comment.     They  are  to  be  seen  in  the  fifth  line,  plate  2. 

Eio-hth.  The  small  letter  "«."  I  give  those  from  "the  note  of 
warning,"  compared  with  as  many  from  No.  27  on  plate  3.  On 
plate  4  I  give  all  these  from  the  "  note  of  warning  "  and  the  en- 
velope, six  in  number,  seven  from  No.  27,  and  twelve  from  Whit- 
taker's papers  used  in  the  case.  The  first  and  fourth  lines  are  from 
Whittaker;  the  second  from  the  "note  of  warning,"  the  third  from 
No.  27.  In  both  cases  I  have  selected  letters  nearest  like  those 
in  the  original  document.  It  would  not  seem  very  difficult  to  say 
which  of  the  two.  No.  8  or  No.  27  wrote  the  second  row  of  letters 
in  this  plate.  And  yet  Mr.  Gayler  says  :  "  In  conclusion,  I  have 
to  report  that  the  writing  of  No.  8  is  the  only  one  among  all  that 
I  have  examined  which  presented  points  of  resemblance  to  the 
Whittaker  note,  sufficiently  strong  and  numerous  to  warrant  me 
in  recommending  the  court  to  pursue  its  investigation  vigorously 
in  the  direction  of  No.  8."  In  view  of  the  four  lines  of  the  letter 
"a"  on  plate  4,  should   not   the  word  resemblance   read  non-ve- 


492  EXPERT  TESTIMONY. 

semblance,  and  thus  the  conclusion  be  based  on  the  same  ground 
as  that  expressed  in  the  legal  publication  before  noticed.  Or  shall 
we  conclude  that  there  is  "form  blindness"  as  well  as  color 
blindness,  and  that  the  experts  thus  far  incur  no  responsibility 
for  their  opinions  ? 

I  proceed  next  to  notice  the  testimony  of  Expert  Southworth. 
While  attending  the  court  in  this  case,  there  was  put  in  my  hands 
some  fourteen  photographic  copies  of  writings,  which  were  desig- 
nated as  No.  27,  as  [  have  before  noted  and  stated,  to  be  the  pro- 
duction of  some  one  of  the  cadets  at  West  Point.  These  are  the 
same  writings  with  which  comparisons  have  already  been  made. 
On  page  162,  Criminal  Law  Magazine,  Mr.  Southworth  says : 
"  I  have  no  doubt,  in  my  own  mind,  that  the  question  note  "  (mean- 
ing the  "note  of  warning")  "was  by  the  hand  that  wrote  No. 
27."  If  this  is  the  same  No.  27  from  which  I  have  taken  so 
many  of  the  letters  in  my  plates,  it  will  be  seen  that  for  some 
reason  Mr.  Southworth  subsequently  testified  quite  differently 
upon  this  point,  for  he  says,  page  152,  Id.,  that  he  "had  been 
obliged  to  abandon  the  ground  taken  in  his  former  report."  This 
change  was  brought  about  by  the  means  of  some  new  papers  being 
brought  to  his  notice.  The  report  goes  on  further  to  say  :  "  With- 
out going  again  into  an  analysis  of  the  anonymous  note,  Mr.  South- 
worth  pointed  out  the  cross  of  both  the  capital  '  A's  and  the  two 
'/'s'  in  the  questioned  note  as  being  natural  and  belonging  to  the 
character,  &c.,  when  fully  made  out  by  the  same  hand."  If  we 
look  at  these  letters  on  plates  2  and  3,  we  shall  see  that  the 
method  of  crossing  these  letters  is  common  to  all  these  cases. 
Why  then  should  it  be  used  to  connect  the  "  note  of  warning"  with 
No.  8,  rather  than  with  No.  27  ?  Perhaps  the  author  of  the 
paper  in  The  Criminal  Law  Magazine  may  be  able  to  tell  us 
also  what  he  means  by  the  following,  on  page  170 :  "  While  it 
is  the  commonest  thing  in  the  world  to  attempt  to  disguise  one's 
own  hand  by  writing  worse  than  he  is  able,  no  writer  can  follow 
models  that  are  unknown  to  him,  or  write  better  than  he  is  able." 
This  is  a  truism  which  no  one  will  be  so  rash  as  to  dispute. 

The  second  capital  "«S',"  on  plate  3,  is  made  on  the  same  prin- 
ciples as  that  of  the  first  from  the  "  note  of  warning ;"  the  next  two 
are  Whittaker's.  These,  with  the  other  letters  on  the  first  line  of 
this  plate,  have  been  commented  on  before.  The  first  letter'  'B" 
on  the  second  line  is  from  the  "note  of  warning;"  the  second  two 


EXPERT  TESTIMONY.  493 

are  from  No.  27,  the  third  two  from  No.  8.  The  second  two  are 
exactly  like  the  first  in  principle,  and  only  differ  as  respects  the 
bending  of  the  first  limb  of  the  letter.  The  last  two  diifer  from 
the  others  in  being  much  more  angular,  in  having  no  open  loops  in 
the  central  portion  of  the  last  limb,  and  in  being  comparatively  of 
an  awkward  form.  The  "F"  has  been  fully  discussed  elsewhere. 
The  "i'^"  is  given  to  show  the  corresponding  form  of  the  bottom 
loop  with  that  of  the  "F."  The  two  last  capitals  in  this  group 
show  a  contrast  as  to  the  top  loop  and  the  bottom  terminal  finish. 
There  are  seven  specimens  of  this  letter  "Y"  on  plate  3,  line  5, 
one  from  the  "note  of  warning,"  and  three  each  from  No.  27  and 
No.  8.  I  call  especial  attention  to  these  last  in  reference  to  the 
terminal  end.  This  club  shaped  end  is  very  common  with  No. 
27  in  this  letter  and  other  analogous  letters — "^"  for  illustration  ; 
while  in  Whittaker's  writing  I  have  never  found  it ;  and  when  he 
ends  off  his  letters  in  this  manner,  /.  g.,  with  the  shaft  bent  at  a 
right  angle,  the  end  is  pointed,  as  seen  in  the  plate.  This  seems 
an  important  point,  for  while  it  connects  No.  27  with  the  "  note 
of  warning,"  it  as  surely  separates  No.  8  from  it. 

The  small  letters  "w"  and  "  im"  are  to  be  designated  as  they 
are  marked,  those  with  a  *  from  the  "note  of  warning,"  with  "J" 
from  No.  27,  with  "I"  from  No.  8.  The  bottom  curves  of  the 
last  limb  of  the  "  w"  in  the  first  two  are  remarkably  characteristic, 
while  no  such  broadening  or  elongation  of  this  curve  is  seen  any 
where  in  No.  8.  The  "w"  also  in  the  first  two  are  curiously 
alike.  Nothing  of  the  kind  can  be  found  in  Whittaker's  writing. 
The  next  line  is  made  up  of  the  letter  "a."  Their  origin  is 
indicated  by  the  characters  placed  over  them.  They  are  fully 
described  in  another  part  of  this  paper.  By  a  comparison  of 
these  letters  on  this  plate  (3)  we  shall  again  arrive,  I  think,  at  a 
full  confirmation  of  what  was  said  in  my  first  notice  of  this  letter. 
The  letter  "c^"  I  have  given  as  it  occurs  twice  in  this  form  in  the 
"note  of  warning."  The  first  two  groups  are  certainly  alike,  each 
to  each,  as  are  those  in  the  last  group  to  those  in  the  second. 
The  "n"  is  a  characteristic  form  of  No.  27.  I  have  never  found 
it  in  No.  8.  The  "wo"  and  "wt"  are  given  as  they  are  found 
with  the  two  letters  connected  in  this  manner  in  No.  27.  It  was 
stated  on  the  trial  that  such  a  connection  of  these  letters  could  be 
nowhere  found  in  his  writings.  This  was  also  said  of  "ow"  which 
is  seen  in  the  last  line  of  plate  2.     The  group  marked  "J"  is 


494  EXPERT  TESTIMONY. 

from  the  word  "compounds"  in  one  of  the  photograplis  of  No.  27, 
numbered  13.  It  is  from  a  paper  on  colors  and  "  The  Sohir 
Spectrum."  The  last  line  in  this  plate  (3)  is  from  a  genuine 
address  on  a  letter  (not  from  the  Whittaker  papers)  and  an  imita- 
tion of  the  same  in  smaller  characters.  It  is  given  to  illustrate  to 
some  slight  extent  what  has  been  called  the  "  rhythm  of  pressure" 
in  handwriting.  It  will  be  noticed  in  the  first  or  genuine  signa- 
ture that  the  down  strokes  for  the  most  part  swell  at  the  bottom, 
while  in  the  other  this  fact  has  been  evidently  overlooked.  This 
constitutes  the  main  diflierence  between  the  two  signatures.  It 
might  not  be  deemed  of  much  value  as  testimony  in  the  absence  of 
all  other  facts,  but  if  under  this  condition  we  could  obtain  a  good 
number  of  different  specimens  of  the  same  hand  and  should  find  tliis 
habit  to  be  constant  in  the  down  strokes  of  the  letters,  I  think  we 
should  be  warranted  in  placing  considerable  confidence  in  our  con- 
clusions. There  are  some  other  points  which  might  be  noticed, 
such  as  the  difference  in  the  middle  loops  of  the  "5,"  which  point 
in  a  different  direction  in  the  two  cases.  In  this  illustration  the 
expert  could  point  out  the  facts  in  the  case  as  I  have  noticed  in 
another  connection,  and  leave  the  jury  to  draw  their  own  conclu- 
sions without  any  guidance  from  him.  Under  such  conditions  the 
idea  of  the  expert  favoring  either  side  of  a  question  would  of 
course  be  incorrect.  He  would  simply  give  the  facts  in  the  case, 
as  would  the  surveyor  in  the  measurement  of  a  field,  or  the  archi- 
tect in  stating  the  number  and  size  of  the  rooms  in  a  building. 
And  even  better  than  these,  for  he  would  verify  his  facts  by  an 
actual  exhibition  of  them  before  the  jury. 

I  next  proceed  to  the  examination  of  plate  2.  A  part  of  the 
letters  on  this  plate  have  already  been  described.  The  first  line, 
"Cadet  Whittaker,"  is  from  the  envelope  of  the  "note  of  warn- 
ing." The  second  is  made  up  from  the  papers  of  No.  27.  The 
syllable  "ade"  is  from  the  word  "  cadet"  in  one  of  these  papers. 
The  "  Ai"  and  "  W"  with  the  single  letters  were  taken  from  the 
writing  of  No.  27.  They  were  drawn,  as  were  all  the  others, 
under  the  microscope,  and  reduced  by  means  of  the  photogra])hic 
process  to  their  present  size  and  copied  at  the  same  time  on  the 
wooden  block,  thus  giving  an  almost  perfect  representation  of  the 
originals.  If  wo  compare  the  two  "  ('»"  in  the  first  and  second 
signatures,  and  the  first  four  capital  "tt»"  in  the  third  line,  and  the 
first  five  small  letters  "  f"  in  the  fifth  line  we  can  hardly  escape  the 


EXPERT  TESTIMONY.  495 

conclusion,  I  think,  that  they  all  belong  to  the  same  family,  that 
of  No.  27.  The  first  "(7"  in  the  third  line,  the  last  three  in  the 
fourth,  and  the  last  four  in  the  fifth,  are  known  to  belong  to  one 
family,  that  is  they  are  Whittaker's  production.  To  which  of  the 
families  do  the  two  forms  marked  with  a  *  which  are  duplicates  of 
each  other  belong?  The  two  capitals  "  TF,"  marked  thus  *  are 
from  the  "note  of  warning"  and  the  envelope.  The  next  two  are 
from  No.  27.  The  last  two  from  Whittaker's  papers  No.  8.  As 
in  every  other  case  I  have  selected  letters  for  comparison  nearest 
in  form  to  those  of  the  same  kind  in  the  "  note  of  warning." 
The  signature  in  the  third  line  is  selected  on  the  same  principles. 
The  second  and  third  "6"  on  the  sixth  line  of  this  plate  are  at 
least  as  much  like  the  first  from  the  "note  of  warning"  as  are  the 
two  marked  "  I"  from  No.  8.  The  fourth  and  fifth  letter  "6"  and 
"/"  on  this  line  have  been  before  noticed  on  account  of  their  simi- 
larity of  form,  so  that  either  would  serve  to  do  duty  as  one  and 
the  same  letter.  It  would  certainly  seem  as  if  they  must  have 
been  made  by  one  and  the  same  hand.  The  '■'■xe"  on  the  seventh 
line  is  from  the  "note  of  warning."  The  second  "are"  from  No. 
27  shows  a  similar  method  of  joining  this  letter  "a;"  to  the  suc- 
ceeding letter.  The  other  letters  "a;"  with  their  connections  in 
this  plate,  four  in  number,  are  all  the  forms  of  this  letter  I  have 
found  in  Cadet  Whittaker's  writing.  It  would  seem  that  if  he 
had  used  the  form  seen  in  the  "note  of  warning"  it  certainly 
must  have  occurred  at  least  once  in  the  numerous  documents  in 
his  handwriting  which  I  have  in  my  possession.  The  three  last 
letters  on  this  plate  show  some  marked  contrasts  of  form. 

On  plate  5  the  name  "  Whittaker"  occurs  three  times.  Two  of 
the  signatures  on  this  plate,  the  first  and  third,  are  from  Expert 
Hagen's  plate,  given  as  fac-similes  of  Whittaker's  writing,  and 
used  as  evidence  in  the  last  trial.  The  second  is  from  the  "note 
of  warning."  I  have  already  compared  the  letters  constituting 
the  "note  of  warning"  with  similar  letters  from  Whittaker's 
own  papers.  These  examples,  as  well  as  those  constituting  the 
first  two  rows  in  this  plate,  are  given  as  illustrations  of  the 
"standards"  on  which  Expert  Hagen  based  his  conclusion  that  the 
person  who  wrote  No.  8  was  the  same  "  person  who  wrote  the 
contents  of  the  note  addressed  to  Cadet  Whittaker;"  and  this  in 
spite  of  the  fact  that  he  must  have  had  the  very  same  papers 
which  I  have  noted  as  No.  27. 


496  EXPERT  TESTIMONY. 

It  will  be  remembered  that  Expert  Gayler,  in  summing  up  his 
testimony,  said:  "  It  must  be  noted  that  the  knee  of  the  "/<"  is 
less  sharp  at  the  top  than  No.  8  usually  makes  it."  This  distinc- 
tion is  very  clearly  seen  here.  It  does  not  seem  to  have  been 
noticed  by  Mr.  Hagen,  or  at  least  to  have  been  thought  of  any 
value;  and  so  of  the  bottom  turn  of  "A"  and  the  following  "z." 
Here  the  same  important  distinction  seems  to  exist.  Notice  also 
the  letters  "A"  and  "A:"  in  these  signatures.  To  say  nothing  of 
the  entire  difference  of  shape  in  the  last  letters ;  in  the  first 
(Whittaker's)  the  ink  stroke  is  much  the  heavier  in  its  last  third, 
while  in  the  ''  note  of  warning"  the  heaviest  part  of  the  letter  is 
where  the  up  line  crosses  the  shaft.  The  "  i"  is  also  separated 
from  the  "<"  in  the  second  example,  and  the  "  <'s"  have  solid  tops 
in  both  cases,  while  in  the  "note  of  warning"  one  has  an  open 
top.  There  is  also  a  very  marked  and  important  distinction 
in  the  crossing  of  these  letters.  In  the  one  the  initial  portion  of 
the  stroke  points  distinctly  upwards  and  the  terminal  portion 
downwards,  while  in  the  other  the  reverse  is  the  fact,  and  more- 
over, in  the  last  the  crossing  stroke  begins  heavy  and  grows 
lighter  at  the  terminal  end.  This  seems  to  be  universally  the  fact  • 
in  Cadet  Whittaker's  writing,  whether  of  pen  or  pencil,  when  the 
crossing  line  is  made  as  a  single  unconnected  stroke,  as  seen  in 
these  two  cases,  while  in  the  writing  of  No.  27  the  analogy  of 
equal  thickness  of  stroke  is  everyAvhcre  to  be  seen.  There  is  also 
a  marked  difference  between  the  terminal  letters  "  r"  in  the  three 
signatures.  The  general  aspect  of  the  two  hands,  as  seen  in  these 
chosen  examples,  is  quite  different.  I  do  not  allude  to  the  com- 
paritive  roughness  of  outline,  as  this  is  dependent  upon  the  fact  of 
the  one  being  photographed  from  a  penciled  original,  while  the 
other  two  are  copies  from  Mr.  Hagen's  plates,  written  in  ink  as  I 
suppose.  Be  this  as  it  may,  he  has  chosen  to  give  them  as 
exhibits  on  which  his  conclusions  were  based,  as  I  have  noticed 
above.  It  would  seem,  from  this  view  of  the  subject,  that  one 
could  hardly  help  coming  to  the  conclusion  that  his  opinion  was 
based  upon  the  same  ground  as  that  of  the  other  witness  before 
mentioned,  that  No.  8  must  have  been  the  author  of  the  note 
in  question  on  account  of  its  being  written  in  a  hand  ontiri'ly 
different  from  his  usual  stylo. 

In  the  last  line  of  writing  on  this   page  is  shown  a  method  of 
presenting  facts  by  which  any  person,  however  innocent,  might  be 


EXPERT  TESTIMONY.  497 

convicted  of  any  crime  whatever,  involving  or  depending  upon 
such  facts  as  testimony.  The  letters  marked  with  a  star  are 
from  the  "  note  of  warning  ;"'  the  others  are  from  a  so-called  "  fac- 
simile" of  this  note  given  in  the  Criminal  Law  Magazine,  pp. 
147,  148.  I  need  scarcely  call  attention  to  these  letters  to  show 
how  entirely  they  differ  from  those  they  claim  to  represent.  The 
"  (7's"  for  illustration — what  a  caricature  it  is  of  the  original !  and 
of  the  others  it  would  seem  as  if  the  intention  was  in  thus  changing 
them  into  a  pointed  hand  to  bring  them  nearer  to  Whittaker's, 
which  is  in  contrast  in  this  respect  to  the  disputed  note.  Here 
we  have  made  objective,  what  in  the  testimony  I  have  noticed  is 
clearly  subjective,  I  think,  and  which  is  based  in  part  upon  the 
inability  to  take  note  of  differences  and  resemblances  of  form,  as  is 
the  case  of  some  persons  with  regard  to  color.  I  cannot  well 
understand  the  facts  under  consideration  in  any  other  manner ; 
for  Mr.  Hagen's  "  fac-similes"  are  fairly  well  made,  while  these 
are,  as  we  see  them,  and  still  the  same  conclusions  have  been 
arrived  at  in  both  cases.  And  further,  these  so  obviously  incor- 
rect conclusions  may  have  grown  out  of  the  want  of  a  proper 
arrangement  of  the  letters  thus  compared,  so  that  they  could  be 
seen  side  by  side  with  each  other.  In  the  comparison  of  hand- 
writing it  is  simply,  as  I  believe,  impossible  to  carry  in  the  mind 
to  any  great  extent  the  forms  of  letters,  so  as  to  distinguish  them 
from  each  other,  where  there  is  any  marked  similarity,  and  espe- 
cially if  these  differences  (which  is  very  liable  to  be  the  case  in 
attempted  forgeries  of  documents)  are  of  so  minute  a  character  as 
to  require  a  microscope  to  detect  them.  By  reproducing  the  mag- 
nified images,  and  placing  them  side  by  side,  this  difficulty  may 
he  overcome.  On  page  166,  of  this  same  Criminal  Law  Maga- 
zine, is  a  diagram  which,  with  the  alleged  facts  connected  with  it, 
I  proceed  to  notice  in  this  connection,  as  they  have  gone  out  to  the 
world  as  evidence  in  this  trial. 

The  diagram  is  made  to  represent  the  half  of  a  sheet  of  letter 
paper  which  has  been  divided  (torn)  into  three  pieces  for  certain 
specified  purposes ;  on  one  of  these  pieces  it  is  said  the  "  note  of 
warning"  was  written,  while  the  other  two  were  used  for  purposes 
which  were  not  brought  under  my  notice  for  examination.  If  the 
diagram  is  intended  to  convey  a  correct  idea  of  one  of  the  facts  in 
the  case,  i.  e.,  the  relative  size  of  the  different  pieces  of  paper 
which  constitute  the  entire  sheet,  it  fails  to  do  so,  as  it  entirely 
Vol.  XXX.— 63 


498  EXPERT  TESTIMdNY. 

misrepresents  the  matter  in  this  respect.  A  sheet  of  this  paper, 
as  I  measured  it,  contains,  as  is  the  fact  with  many  other  samples 
of  paper  of  this  form,  over  one  hundred  and  sixty  (160)  square 
inches  of  surface;  a  half  sheet  some  eighty  (80)  square  inches. 
Now  the  "  note  of  warning"  is  represented  in  this  diagram  as  occu- 
pying more  than  one-third  of  the  area  of  the  half  sheet,  that  is  at 
least  thirty  square  inches.  The  "note  of  warning"  itself  measures 
three  and  two-tenths  (3.2)  inches  by  two  and  six-tenths  (2.6) 
inches,  giving  an  area  of  eight  and  thirty-two  one  hundredths 
(8.32)  inches.  There  is  nothing  in  the  text  of  this  paper  to  show 
that  the  diagram  alluded  to  was  not  intended  to  correctly  represent 
the  original.  It  is,  therefore,  at  least  as  fair  to  say  of  it  that  it 
goes  as  far  in  this  direction  as  does  Mr.  Southworth's  testimony, 
which  was  based  upon  the  relation  of  facts  which  it  professes  in 
part  to  set  forth. 

Expert  Southworth  says  (Criminal  Law  Magazine,  pages 
165-6) :  "  I  have  a  sheet  of  paper  from  which  the  paper  on  which 
the  anonymous  note  is  written  was  torn.  The  fact  is  easily  dis- 
cernible to  ordinary  vision  with  the  naked  eye."  Again.  "  The 
torn  edges  of  the  paper  in  two  places,  the  ruling  and  the  machine 
cut  at  the  original  transverse  edge,  it  was  apparent  without  any 
microscope,  fitted  exactly." 

Here  are  three  facts  mentioned,  only  one  of  which,  nor  that, 
indeed,  necessarily,  goes  to  connect  Cadet  Whittaker  with  the 
authorship  of  the  "  note  of  warning."  Tiie  fact  that  the  ruled 
lines  "fitted  "  could  not  well  help  to  be  so,  as  the  paper  was  the 
same  manufacture  as  is  used  by  the  other  cadets  at  West  Point, 
and  the  "machine  cut,"  if  it  means  anything,  goes  to  the  same 
end  of  showing  that  the  paper  was  of  the  same  manufacture  as 
that  in  the  hands  of  the  other  cadets,  and  that,  therefore,  not  one 
of  them  would  have  had  any  trouble  in  this  direction  in  producing 
the  note  in  question.  The  question  tiien  only  remains  :  did  the 
"  torn  edges  of  the  paper  fit  "  so  as  to  be  "easily  discernible  by 
the  ordinary  vision,"  or,  indeed,  was  there  any  proof  whatever  in 
this  respect,  that  they  fitted  at  all.  On  the  contrary,  did  not  the 
facts  in  this  connection  all  tend  to  show  that  no  such  union  as  is 
here  alleged  ever  existed?  I  certainly  examined  the  originals 
with  great  care,  both  with  the  unaided  eye  and  with  magnifiers, 
and  came  to  this  last  conclusion.  Further,  there  were  placed  in 
my  hands,  at  the  trial,  photographs  of  the  pieces  of  paper  in  juxta- 


EXPERT  TESTIMONY. 


499 


PLATE  6. 


500  EXPERT  TESTIMONY. 

position  as  described  by  Expert  Southworth,  and  tliese  viewed 
by  the  unaided  eye  and  also  by  the  help  of  the  microscope,  fully 
confirmed  this  conclusion.  The  photographs  alluded  to  were 
"  Southworth's,  Diagram  C,  No.  3."  I  made  careful  drawings  of 
the  torn  edges  of  the  paper,  as  shown  by  these  photographs,  under 
the  microscope,  and  testified  on  them  at  the  trial.  Since  then  I 
have  gone  over  the  whole  ground  again,  and  hereby  exhibit  the 
results  in  plate  6.  The  first,  second,  third  and  fourth  diagrams  of 
plate  6  are  from  the  papers  described,  showing  the  value  of  Mr. 
Southworth's  statement,  where  he  says :  "  An  inserted  spot  (in- 
dentation) on  one  edge  has  its  corresponding  tooth  opposite."  The 
magnifying  power  in  these  cases  is  about  seven  diameters,  hence, 
one  of  these  strips  represent  the  length  of  half  an  inch  of  the 
edges  of  the  original  documents.  The  lower  diagram  (No.  8)  is 
from  the  "note  of  warning  "  (and  the  piece  of  paper  from  which 
it  was  divided,  as  testified  by  Mr.  Southworth.  It  was  copied 
from  the  photographs,  as  described  above.)  It  is  magnified  some 
five  diameters,  and  shows  about  three-fourths  of  an  inch  of  the 
torn  edges  of  the  paper.  The  remaining  three  diagrams  (5,  6,  7) 
are  from  actual  experiments  on  two  kinds  of  paper,  No.  5,  legal 
cap,  Nos.  6,  7,  linen  paper  torn  in  two  directions.  These  speci- 
mens were  torn  under  precisely  the  same  conditions  by  the  side  of 
a  metallic  plate  ;  the  magnifying  power  was  the  same  as  in  the  first 
four  specimens.  It  will  be  seen  by  this,  I  think,  that  some  evidence 
of  the  fitting  of  the  torn  edges  of  paper  should  be  shown,  in  order 
to  render  such  testimony  of  any  value  in  the  courts.  There  is  a 
method  by  which  paper  can  be  torn  so  that  diflferent  kinds  may  be 
made  to  fit  as  well  as  in  the  genuine  experiments  shown  in  dia- 
grams 5,  6,  7.  Hence,  in  the  absence  of  other  testimony  corres- 
ponding with  it,  such  fitting  of  edges  could  be  deemed  of  but  little 
value.  What  should  be  said  in  this  case  then  where  it  can  be 
shown  to  a  demonstration  that  the  edges  of  the  specimens  in 
question  could  not,  so  far  as  anything  can  be  deduced  from  the 
appearance,  have  ever  been  united  ? 

There  is  one  other  fact  which  I  proceed  to  mention  in  this  con- 
nection, as  it  relates  to  my  general  subject,  I  have  given  a 
plate  (plate  7)  illustrating  this  subject,  as  far  as  this  can  be  done 
by  means  of  an  engraving.  It  consists,  in  the  main,  in  the 
results  obtained  by  exposing,  at  the  same  time  and  under  the  same 
conditions   of  arrangement,  certain   substances  regarded  or  seen  as 


EXPERT  TESTIMONY, 


I 

t- 

L 


602  EXPERT  TESTIMONY. 

similar,  to  the  photographic  process.  Thus,  white  paper,  from 
pieces  of  which  mounted  on  other  paper  the  plate  is  made,  shows 
not  only  differences  of  color  and  depth  of  shade,  as  seen  in  the 
engraving,  but  differences  of  texture  as  well.  It  is  also  a  fact 
that  paper  which  has  undergone  a  change  by  keeping,  so  as  to  become 
in  the  slightest  degree  yellow,  will  take  many  shades  deeper  than 
fresher  paper  of  the  same  kind.  And  so  ot  inks  used  in  ruling, 
&c.,  under  the  ordinary  photographic  process — e.  g.  yellow  or 
orange  lines,  as  seen  in  one  of  the  specimens  on  the  plate,  while 
light  blue  or  purple  will  show  but  faint,  if  at  all.  A  dark  or  deep 
blue  sometimes  shows  quite  distinctly  by  the  side  ot  a  fainter  blue. 

Now  if  all  these  conditions  should  obtain  in  a  given  case ;  if 
two  pieces  of  paper  should  be  arranged  side  by  side,  as  in  the  plate, 
and  the  resulting  photograph  in  the  one  should  be  darker  than  the 
other,  if  the  two  should  also  differ  in  color  so  that  one  should 
appear  of  a  reddish  grey  while  the  other  should  appear  of  a  blucish 
grey,  and,  moreover,  the  ruled  lines  in  the  one  case  should  appear 
quite  plain,  while  in  the  other  they  were  hardly  perceptible,  we 
might  feel  warranted,  I  think,  in  coming  to  the  conclusion  that 
the  two  pieces  of  paper,  thus  compared,  never  belonged  to  one  and 
the  same  piece.  Now  this  is  precisely  the  fact  in  regard  to  the 
photographs  I  have  described  as  being  used  on  the  Whittaker  trial. 
Duplicates  of  these  photographs  lie  before  me  as  I  write,  on  one 
of  which  I  testified  at  that  trial.  I  remark  here  that  all  the 
documents  on  which  this  paper  is  founded,  with  the  exception  of 
the  original  note,  and  the  two  pieces  of  paper  said  to  be  torn  from 
the  same  sheet,  are  in  my  possession,  and  I  appeal  to  them  for  the 
rubstantial  correctness  of  all  of  my  statements. 

Next  comes  the  most  remarkable  piece  of  testimony  exhibited 
^n  this  most  remarkable  trial,  and  perhaps  the  most  remarkable 
Avhich  has  ever  been  known  in  any  court  since  such  institutions 
first  came  into  existence.  This  piece  of  testimony  has  gone  out  to 
the  world  in  such  a  guise  as  to  have  been  frequently  cited  as 
unanswerable  proof  of  the  guilt  of  the  accused.  Its  character 
may  be  inferred,  perhaps,  from  the  fact  that  it  is  the  production  of 
the  last  witness  whose  testimony  I  have  examined,  viz..  Expert 
Southworth.  It  was  not  produced  on  the  first  trial.  Plate  8, 
embodies  as  far  as  may  be,  perhaps,  the  ideas  Avhich  go  to  make  up 
this  piece  of  testimony.  This  plate  consists  of  a  fac-simile  copy 
of  the  "note  of  warning,"    and    the  address   on    the   envelope, 


EXPERT  TESTIMONY. 


503 


PLATE  8. 


\^ 


s^- 


^4Ph  '^ 


V 


^ 


(^-  -/  'Mid 


^ 

^<^ 


together  with  other  writings  on  the  same  papers,  professed  to  be  as 
brought  out  by  Mr.  Southworth  on  enlarged  photographs  of  these 
papers.  On  the  origmal  "  note  of  warning  "  and  the  envelope,  no 
such  writing  could  be  seen  either  by  the  unaided  eye,  or  by  means 
of  the  microscope.  Neither  could  it  be  seen  on  photographs  of 
these  papers  which  were  made  of  the  same  size,  or  nearly  the  same 
size  as  the  originals ;  but  when  magnified  three  diameters,  that  is, 
nine  areas,  according  to  Expert  Southworth,  this  underwriting  is 


504  EXI'ERT  TESTIMONY. 

plainly  visible.  Now,  on  these  enlarged  photographs,  the  original 
writing  on  the  note  and  envelope  appears  nine  times  as  large  as  on 
these  papers  themselves,  while  this  underwritmg  is  mainly  of  the 
same  size  on  these  enlarged  photographs  as  that  on  the  original 
papers  in  their  normal  size.  Thus,  the  original  letters,  as  seen  on 
these  photographs,  appear  of  gigantic  size  by  the  side  of  the  under- 
writing which  is  of  normal  size,  so,  that  when  Mr.  Southworth's 
tracing  is  reduced  to  its  original  size,  as  it  was  when  both  the 
underwriting  and  overwriting  was  made,  we  find  that  a  good  deal 
of  the  underwriting  is  microscopic  in  its  character.  Mr.  South- 
"worth's  theory  is  that  Whittaker  practised  this  underwriting  as  a 
preparatory  exercise  previous  to  producing  the  note  and  envelope ; 
that  this  underwriting  was  in  pencil,  as  was  the  note  ;  and  that  it 
was  rubbed  out,  and  afterwards  the  note  itself  written  on  the  same 
paper.  Had  so  foolish  a  scheme  as  this  been  put  into  execution, 
the  note  being  written  as  it  was  on  ruled  paper,  it  will  be  at  once 
inferred  that  in  the  operation  of  rubbing  out  the  pencil-marks,  the 
ruling  would  have  been  as  surely  obliterated.  This  was  found  to 
be  the  fact  by  repeated  experiments,  once  in  the  presence  of  the 
court  and  under  their  direction.  In  this  case  some  of  the  •'  West 
Point  paper"  (ruled)  was  taken  and  penciled  over  with  a  soft 
pencil,  to  the  extent  and  in  the  manner  directed  by  the  court. 
Next,  the  pencil-marks  were  removed  by  means  of  India  rubber, 
when  it  was  found  that  the  ruled  lines  had  also  disappeared.  These 
lines  were  intact  on  the  original  note,  and  also  show  as  I  have 
before  stated  on  the  photographs  made  from  this  note. 

The  above  facts  alone  would  seem  to  amount  to  a  demonstration 
that  this  whole  piece  of  testimony  was  but  the  production  of  the 
imagination.  If  such  hallucinations  are  to  be  received  at  all,  as 
testimony  in  any  court,  surely,  as  here  set  forth,  the  jury  would  be 
as  competent  to  arrive  at  a  conclusion  in  regard  to  it  as  the  expert 
witness,  whose  province  it  is  thus  to  state  it.  It  may  be  well  to 
notice  here  that  the  faculty  of  being  able  to  see,  or  imagine  the 
presence  of  letters  and  other  forms  on  irregularly  darkened  paper 
surfaces,  as  produced  by  the  photographic  process,  kc,  is  common 
enough  as  I  have  found  by  actual  experiment.  In  the  present 
case,  I,  myself,  with  others,  could  trace  the  appearance  of  writings 
on  Mr.  Southworth's  photographs.  But  no  two  individuals,  when 
making  these  tracings  by  themselves,  would  see  the  same  letters, 
nor  would  they  seem  to  be  ia  any  recognisable  hand.     In  some 


EXPERT  TESTIMONY.  505 

cases  grotesque  images  would  appear,  mingled  with  forms  of  letters 
and  other  objects.  The  strange  fact  in  the  matter  is,  that  any  one 
should  have  once  thought  of  using  this  "stuff,  of  which  dreams 
are  made,"  as  testimony  in  any  case. 

I  ought  perhaps  to  add,  as  a  further  illustration  of  this  matter, 
a  description  of  what  I  showed  on  the  trial,  e.g.,  an  enlarged  photo- 
graph of  a  clean  piece  of  paper  of  a  slightly  yellowish  aspect,  on 
which  I  had  made  some  lines  of  writing.  Of  course,  as  in  the 
photograph  of  the  "note  of  warning"  which  I  have  been  discussing, 
these  letters  appeared  enlarged  in  the  same  proportion  as  the  paper 
itself.  On  this  paper  I  myself,  as  well  as  several  other  persons  to 
whom  I  submitted  it,  could  trace  letters  and  various  other  forms 
precisely  as  we  could  do  on  Mr.  Southworth's  enlarged  photographs 
as  before  stated.  These  "imaginary"  letters  appeared,  as  in  his 
case,  of  the  normal  size,  and  had  the  paper  with  the  genuine  and 
imaginary  writing  been  reduced  to  its  original  size  of  course  this 
underwriting  would,  as  shown  in  the  plate,  appear  of  a  diminished 
size,  as  must  have  been  the  fact  had  it  existed  on  the  paper  previous 
to  my  executing  the  "lines  of  writing"  as  stated  above. 


PLATE  9. 


Plate  9,  illustrates  the  fact  that  letters  written  in  pencil  may  be 
made  to  appear  quite  different  on  photographs  taken  before  and 
after  the  pencil  dust  has  been  moved  by  rubbing.  The  single  "/>" 
in  the  group  is  a  magnified  reproduction  of  the  letter  in  the  word 
April  on  the  photograph  of  the  "note  of  warning"  furnished  me 
early  in  the  case,  as  I  have  mentioned  before.  The  other  "jt?"  is 
from  a  later  photograph  presented  to  the  court  by  the  judge  advo- 
cate as  showing  that  this  letter  was  of  different  form  from  my 

Vol.  XXX.— 64 


506 


EXPERT  TESTIMONY- 


EXPERT  TESTIMONY.  507 

representation  of  it.  It  is  an  exact  reproduction  of  this  letter  as 
seen  in  this  photograph,  a  copy  of  which  I  have  in  my  possession, 
it  being  the  one  on  which  I  testified.  All  the  letters  on  this  photo- 
graph, with  the  exception  of  this,  appear  as  clean  in  their  open 
spaces  as  does  the  "^"  in  this  plate.  This  fact  joined  with  the 
other  that  in  ray  first  photograph  this  letter  i-s  thus  clean,  shows 
to  a  demonstration  that  this  letter  must  have  been  somehow  changed 
between  the  times  of  taking  the  two  photographs.  In  my  examina- 
tion of  the  original  note  I  could  clearly  see  that  this  letter  had 
been  rubbed  as  I  have  described.  And,  further,  under  the  micro- 
scope, even  on  the  photograph,  the  original  lines  can  be  distinctly 
seen  as  exhibited  in  the  plate.  I  do  not  know  that  this  fact  had 
much  bearing  on  the  case.  It  seemed  as  if  it  were  deemed  of 
importance  by  the  manner  in  which  it  was  presented  to  the  court. 
It  certainly  should  be  placed,  I  think,  in  the  same  category  as  all 
the  other  testimony  I  have  thus  far  examined  in  this  case. 

My  tenth  plate  is  made  to  show  how,  under  the  microscope  and 
in  the  hands  of  a  skilful  engraver,  a  letter  may  be  so  copied  as  to 
represent  every  appreciable  fact  connected  with  it  with  the  excep- 
tion of  color.  Thus,  heavy  or  light  lines,  crossing  lines,  the  one 
under  or  over,  which  frequently  becomes  an  important  question 
in  these  cases,  and  other  facts  as  shown  in  my  plates.  The  three 
large  drawings  of  letters  in  this  plate  are  made  from  the  small 
one  under  the  microscope  on  three  separate  times.  They  have 
been  transferred  directly  on  the  wood  block,  and  are  in  the  true 
sense  of  the  term  actual  fac-similes  of  the  originals.  These  en- 
larged images  also  serve  to  show  how  under  the  microscope  every 
form  and  feature  of  a  letter,  however  small,  may  be  brought  out  and 
placed  in  a  condition,  as  I  have  before  said,  so  that  the  court  and 
jury  in  a  given  case  may  be  as  well  qualified  to  decide  the  value 
of  such  testimony  as  the  expert  himself  whose  province  it  is  thus 
to  present  it. 

I  wish  to  acknowledge  here  the  care  and  skill  of  Messrs.  Baker 
&  Co.,  who  have  enabled  me  to  present  such  perfect  fac-similes  of 

my  original  illustrations. 

R.  U.  Piper. 


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